Long before ditching track safety policy following worker deaths, BART fought to keep it

Years before BART ended the practice of making track workers largely responsible for their own safety, the agency's workers and state regulators were sounding alarm bells that the controversial practice placed employees at unnecessary risk.

Despite fines and warnings from the state Division of Occupational Safety and Health after a 2008 fatality linked to the "simple approval" policy, BART managers stuck with that practice until two track inspection workers were struck and killed Oct. 19. After suspending the practice -- which requires workers "wayside," or along the tracks, to keep watch for oncoming trains -- BART management announced Thursday it is eliminating simple approval. BART told its board it is pondering how to handle "hundreds" of track-maintenance requirements each month.

The National Transportation Safety Board -- which is investigating how a BART train driven by a trainee struck and killed 58-year-old Christopher Sheppard, a BART employee, and 66-year-old Laurence Daniels, a rail consultant -- said BART's move is voluntary.

"We didn't order BART to do that," NTSB spokesman Eric Weiss said. The agency has the authority to implement "urgent recommendations" but did not do that in this case.

Unions had long been fighting to end simple approval.

"It's been a very big worry for a lot of years for workers," said SEIU 1021 President John Arantes, who represents many BART workers who work trackside. "Now our members will be safer on the mainline."

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BART has acknowledged the change will significantly impact riders and increase construction-related train delays. One worker who asked not to be identified because of the sensitive nature of the topic, said, "That will shoot BART's 95 percent on-time rating down the tubes."

"I think it's a typical BART overreaction and overkill, but they have four deaths attributed to it now and OSHA jumping down their back," the worker said, adding the move could also increase overtime.

A BART spokeswoman did not respond to a request for comment.

Cal/OSHA fight

The last worker fatality for the rail agency was five years ago this month -- just about a mile from the scene of the Oct. 19 accident. James Strickland, 44, was struck by a train and killed when he left a path because of heavy bushes between the Concord and Pleasant Hill stations.

He was hit from behind as he walked north on the southbound tracks. Trains were running on a single track in the area, and Strickland apparently did not hear or see the train approaching.

Train operators were not informed he was working in the area, according to Cal/OSHA documents. BART was initially fined nearly $29,000 for Strickland's death.

"The simple approval process does not adequately safeguard employees," Cal/OSHA wrote in response to a 2011 BART appeal.

BART had some citations overturned, but two were upheld. It continued to fight those, petitioning in June for reconsideration. The agency was denied, and unions and family asked for an escalation in the citations; BART filed a writ of mandate July 26 to overturn it.

A Cal/OSHA spokeswoman declined to comment because the case is pending.

However, in 2009, Cal/OSHA spokeswoman Erika Monterroza said of simple approval, "We don't think this was a good practice."

BART made changes to the system -- adding a lookout to trackside work areas and alerts to train operators that workers are wayside -- but continued to insist ground workers should work without knowledge of oncoming trains, to motivate maintaining constant awareness.

Earlier this year, court documents show BART continued to insist it was safe.

"In its petition for reconsideration, BART argues 30 years of use of the simple approval establishes its efficacy," a Cal/OSHA appeals board wrote. "However, good luck and alert employees throughout that time also account for the alleged, though not established, accident-free use of the procedure."

"We are serious about worker safety," BART spokesman Jim Allison said in 2009, "but we don't think the Cal/OSHA violations address the situation in a relevant way."

On Oct. 19, the two men accessed the trackway under simple approval. According to policy, one BART employee should have been at least five feet away from the tracks acting as a lookout for the contractor. For some reason, on this day, that did not happen.

A BART police officer looks along the outside of a BART car that struck and killed two people along Jones Road in Walnut Creek, Calif., on Saturday, Oct. 19. (Dan Rosenstrauch / Bay Area News Group)

Simple approval

The California Public Utilities Commission has also monitored BART's controversial practice.

BART workers are supposed to take extensive safety training for working along its tracks, according to the last CPUC review of the rail agency's safety programs published three years ago. It also requires workers assigned to track repairs and access alongside tracks to pass a safety test with a score of at least 85 percent, including hand signals meant to communicate with train operators.

The report found an employee using improper hand signals for an approaching train.

Workers are also required to fill out paperwork whenever they move on or alongside tracks. The regulator found a BART maintenance crew did not fill out simple approval forms on two consecutive days.

As the BART worker told this newspaper recently, "Nobody fills that out," calling it redundant.

In 2010, the regulator found a BART ground worker was listening to the radio while "obtaining permission to occupy track." The CPUC recommended that BART take measures to ensure that its wayside workers adhere to safety protocols.

Vegetation growth along the tracks can be a serious problem for maintenance workers, the report said, sometimes forcing them from footpaths alongside the tracks onto the rails themselves.

The commission is considering new regulations to ban personal electronic device use by "safety-sensitive rail transit personnel" and new worker-protection rules for rail transit wayside employees. BART already bans train operators from using cellphones or even carrying a powered-off cellphone in their pocket.

Jeff Keating was a young rail engineer in 1980 surveying a track on a truss bridge 70 feet above the Arkansas River when a freight train surprised him coming around a bend. With seconds to spare, Keating grabbed his surveyor's rod and jumped to a bridge section below.

"For decades, there was no such thing as approval on accessing freight tracks," said Keating, now a senior associate in rail and transit with Chicago-based Lochner, a civil and structural engineering firm. "You just went out and didn't get hit."

The procedures on most freight and transit properties allow single workers access to tracks, not requiring a buddy system.

"There are a lot of ways to die in that environment," said Keating, a member of the American Railway Engineering and Maintenance-of-Way Association. "It just takes a second."

Los Angeles' Metro Rail system requires workers to wear a yellow receiver on their body that beeps when a train nears. In addition, crews must have someone as a lookout, notification is given to central command, and train operators and trains must avoid the work area.

"Word is spread far and wide," said spokesman Marc Littman, adding that even with the increased safety precautions, the rail system maintains a 98 percent on-time performance rating.

In the past, BART has said such technology prevents vigilance on the part of workers, but at Thursday's board meeting management said it would revisit such technology.

As the BART worker put it: "You establish the rules as things go wrong. Every rule has someone's name attached to it."